Regulatory&LitigationDevelopmentsforAdvertisersandMarketers

Can I Use that Photo? No. Yes. Maybe?

Businesses often have a need to make use of photographs as decorative art, for illustration, in connection with programs, events, or seminars, or for other purposes. For photographs not created by the respective business, the question arises whether photos from other sources can be used without first obtaining a license. The general answer is no. United States copyright law provides certain rights to the owner of the work of authorship that include the exclusive rights to reproduce, publicly distribute, and publicly display directly or through others. Before using a copyrightable work, it’s therefore important to evaluate its respective copyright rights. This should happen regardless of where the work was found or how the work will be used.

For photographs, it’s even more important to consider copyright interests. Photographs are generally going to be considered a creative work of authorship subject to copyright protection. The U.S. Copyright Office recently amended the regulations governing the application process for photographs to permit group registration of photographs. Under the final rule (37 CFR Parts 201-02), which took effect February 20, 2018, photographers can utilize an online application and refined deposit submission requirements to facilitate and increase the efficiency of applying for a copyright registration for multiple photos. Up to 750 photographs can now be included in a single claim. These processes will make it easier for photographers to enhance their rights in their photos (with a copyright registration), which, in turn, will increase the risk for third-party users that make use of such photos without permission. To avoid complications, particularly with copyright trolls that aggressively assert rights in photographs and often against innocent users, it’s best for businesses to consider the following steps before making use of a third-party photo.

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